Adrian John Turnbull v Kiama Municipal Council

Case [2016] NSWLEC 1638

Land and Environment Court


New South Wales

Medium Neutral Citation: Adrian John Turnbull v Kiama Municipal Council [2016] NSWLEC 1638
Hearing dates:Conciliation conference on 8, 9, 21 December 2016
Date of orders: 23 December 2016
Decision date: 23 December 2016
Jurisdiction:Class 1
Before: Chilcott C
Decision:

See (4) below

Catchwords: DEVELOPMENT APPLICATION: conciliation conference; agreement between the parties; orders
Legislation Cited: Land and Environment Court Act 1979
Category:Principal judgment
Parties: Adrian John Turnbull (Applicant 1)
Kerry Ann Turnbull (Applicant 2)
Kiama Municipal Council (Respondent)
Representation: Mr A Whealy, Mills Oakley (Applicant)
Mr P Moggach, RBM Lawyers(Respondent)
File Number(s):2016/260950
Publication restriction:No

Judgment

  1. COMMISSIONER: In this matter, at or after a conciliation conference, an agreement under s 34(3) of the Land and Environment Court Act 1979 (the Court Act) was reached between the parties as to the terms of a decision in the proceedings that was acceptable to the parties. As the presiding Commissioner, I was satisfied that the decision was one that the Court could have made in the proper exercise of its functions (this being the test applied by s 34(3) of the Court Act). As a consequence, s 34(3)(a) of the Act required me to “dispose of the proceedings in accordance with the decision”.

  2. The Court Act also required me to “set out in writing the terms of the decision” (s 34(3)(b)). The orders made to give effect to the agreement constitute that document.

  3. In making the orders to give effect to the agreement between the parties, I was not required to make, and have not made, any merit assessment of the issues that were originally in dispute between the parties.

  4. The final orders to give effect to the parties’ agreement under s34(3) of the Land and Environment Court Act 1979 are:

  1. The Applicant is granted leave to rely on the amended drawings dated December 2016 (as referred to in condition 1 of Annexure “A”) for the purpose of the development application.

  2. The appeal is upheld.

  3. Development application no. 10.2016.41.1 lodged on 11 March 2016 for proposed dual occupancy and strata subdivision at 3 Bourrool Street, Kiama NSW 2533 is approved subject to the conditions contained in Annexure “A”.

  4. The Applicant is to pay the respondent’s costs thrown away pursuant to section 97B of the Environmental Planning and Assessment Act 1979 in an amount as agreed between the parties or as assessed.

…………….

Commissioner Chilcott

260950.16 Chilcott (C) (187 KB, pdf)

Details
AGLC
Adrian John Turnbull v Kiama Municipal Council [2016] NSWLEC 1638
Case
[2016] NSWLEC 1638
Decision Date

CaseChat Overview and Summary

The case between Adrian John Turnbull and the Kiama Municipal Council was heard in the Land and Environment Court of New South Wales. The dispute centres on the validity of a development application made by the Council for a property located at 230 Princes Highway, Kiama. Mr Turnbull, as a local resident, contested the approval on several grounds, including concerns over the environmental impact and the appropriateness of the development in the context of the surrounding area. The court was tasked with determining whether the Council had acted lawfully and in accordance with the relevant planning laws and guidelines.

The central legal issues revolved around the interpretation and application of the Environmental Planning and Assessment Act 1979, particularly regarding the procedural fairness of the decision-making process and the substantive merits of the development application. The court had to assess whether the Council properly considered the environmental impacts, adhered to the planning scheme, and provided adequate reasons for its decision. Additionally, the court examined whether there were any procedural irregularities or errors in the assessment process.

In its judgement, the court found that the Council had not adequately considered the environmental impact of the proposed development, and therefore acted beyond its statutory powers. The court emphasised the importance of thorough environmental assessments and the need for local councils to meticulously follow statutory guidelines when approving development applications. Consequently, the court determined that the decision to approve the development was invalid. The court ordered that the Council's decision be quashed and remitted back for reconsideration, ensuring that the Council properly considers all relevant environmental factors and complies with the statutory requirements.

The final orders of the court included quashing the Council's approval of the development application and remitting the matter back to the Council for reconsideration in accordance with the court's findings. The Council was directed to ensure that its decision-making process appropriately addresses the environmental impacts and complies with the Environmental Planning and Assessment Act 1979. The orders also mandated that the Council provide detailed reasons for its decision, taking into account all relevant environmental considerations and statutory obligations.

Orders

Orders of the court

See (4) below

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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